Solicitors Martin Whitehorn and Julie West summarise the new requirements for sellers when marketing a property for sale via an estate agent.
What should I know?
Property solicitor Martin Whitehorn
Estate agents and other property businesses are legally obliged by the Consumer Protection from Unfair Trading Regulations 2008 to disclose ‘material information’, being information, which would impact a buyer’s decision in relation to the property. This includes not just making an offer but even just viewing the property and indeed proceeding with any other aspect of a purchase.
Since the end of May 2022 new regulations published by the National Trading Standards Estate and Letting Agency Team (NTSEAT) require estate agents to disclose ‘Part A’ material information, being the initial information deemed necessary for prospective buyers to make an informed decision whether to look further at any property. Part A information is expanded on in Martin’s previous article on material information here.
Since then, in November 2023, the National Trading Standards Estate and Letting Agency Team introduced ‘Part B’ and ‘Part C’ information.
Part B information should be established for all properties and will include information that may:
involve some cost of maintenance or repair;
affect mortgage availability or that of relevant insurance products; or
the use and enjoyment of the property.
One example is the materials used in construction (where they impact the buyer). Impact to the buyer is not something you should guess. Appropriate professional intervention from your surveyor and solicitor as appropriate is crucial to getting it right the first time, saving yourself time and cost to rectify any issues in the long run.
Founder and director Julie West
Part C information may or may not need to be established depending on whether the property is impacted or affected by the issue in question, for example building safety and any rights and restrictions shown on its register of title (sometimes called title deeds) at Land Registry. National Trading Standards explicitly acknowledge that estate agents are not qualified to make judgements on building safety unlike a surveyor or to interpret title information unlike a solicitor, and instead recommend that sellers seek the services of such qualified professionals.
In all cases the regulations introduced by National Trading Standards Estate and Letting Agency require sellers and their estate agents to proactively provide material information as early as possible in the marketing process, preferably at the point the property goes on the market. If material information is not known it must be found out and updated.
National Trading Standards perceive the benefit of this requirement is to reduce the rate transactions fail due to material information coming to light later in the conveyancing process, and so reduce the cost and delay of transactions that do not proceed. Of course, it involves extra work and cost for sellers before putting their property on the market, but this is seen as a price worth paying for a fairer, better functioning residential property market.
Most sellers also buy a replacement property; you should look to any agent selling a property to you to provide material information at the outset for a property that you will be buying.
What if I do not have this information at the moment?
Contact a solicitor to help you put together the material information to be disclosed by your estate agent. Your solicitor can help you by identifying and suggesting ways to resolve any potential issues; this can help avoid losing the sale further down the line because something came to light that could have been dealt with in advance.
Getting a solicitor to compile the material information to be provided at the point of marketing has the added advantage that your solicitor can at the same time compile the ‘contract pack’ of information and documents required to progress the sale, in readiness for when a buyer is found. Being ‘contract ready’ is a benefit for any seller as it significantly reduces the time to complete the sale and move on with your life.
How we can help with residential property
It is important that your solicitor is ready to help you in proactively compiling material information. National Trading Standards’ published guidance makes clear that disclosing material information should not be left until a potential buyer expresses an interest in the property, but displayed and updated in a timely manner when this information is known or has changed.
One way to discern whether a solicitor is ready to assist you with compiling material information is to check whether you are able to readily communicate with them. This will reassure you they have the capacity to assist you.
Additionally, it is worth checking if any lawyer endorsed by the estate agent is paying the estate agent to be recommended. We do not pay to be recommended by estate agents so you can feel confident that our advice is truly independent.
Julie West Solicitors is pleased to assist with compiling material information on the sale of a residential property and with all aspects of residential and commercial property, wills, trusts, probate and lasting powers of attorney:
To start a conversation with your solicitor phone us on 01372 383273 or complete our online enquiry form.
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